Supreme Court Hears Arguments in Judicial Ethics Case

March 3, 2009 at 12:00 AM EST

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The Supreme Court heard arguments Tuesday in a case testing when elected judges should recuse themselves from cases because of an appearance of bias. The National Law Journal's Marcia Coyle provides an update.

TRANSCRIPT

RAY SUAREZ: At issue at the high court today, when must elected judges recuse themselves from cases because of the appearance of bias? And here to walk us through the arguments is Marcia Coyle of the National Law Journal.

And, Marcia, this West Virginia case came to the high court today. What was at issue?

MARCIA COYLE, National Law Journal: Hugh Caperton opened a coal mining company in West Virginia. He won a $50 million jury award against another coal mining company owned by a fellow by the name of Don Blankenship, basically because of the way in which Blankenship put Caperton’s company out of business.

Between the time of that jury award and a widely anticipated appeal by Blankenship, there was an election for a seat on the West Virginia Supreme Court. Blankenship contributed $3 million in direct and indirect contributions to an attorney named Brent Benjamin in order to defeat an incumbent judge on that court.

Benjamin won. The appeal came up before him and other judges on the court. Caperton asked Benjamin to recuse himself, step aside because of the campaign contributions connection. Benjamin refused to step aside, ultimately ruled in a 3-2 decision in favor of Blankenship.

Caperton brought the appeal to the Supreme Court saying due process, which protects our right to fair trials by an impartial decision-maker, among other things, demanded that Benjamin should have stepped aside because of the appearance of bias.

Court mulls different standards

RAY SUAREZ: Has the Supreme Court ever been asked to rule on when a judge should recuse him or herself?

MARCIA COYLE: Oh, yes, absolutely, but never in this context of campaign contributions to a judicial campaign. The court has said basically that a judge should recuse himself or herself in two types of cases: where the judge has a financial interest in the outcome of the case; and in proceedings related to a judge's issuance of a contempt order.

RAY SUAREZ: So what happened in today's argument? How did the justices break down? Where did the questioning go?

MARCIA COYLE: It was really a very good argument by two very experienced Supreme Court lawyers. And my sense was that there are a number of justices who feel that Justice Benjamin in this case should have stepped aside, but what dominated the arguments was the more difficult question of, what kind of standard or test do we offer judges that will enable them to know when campaign contributions in their campaigns create a due process problem? When does it rise to the level that it implicates the Constitution?

Ted Olson, Theodore Olson, represented Mr. Caperton in the arguments, and he told the justices that he felt that the appearance of bias was something that could trigger the Constitution and that the test here really should be, what would a reasonable person faced with all the facts believe? Would that person believe that the judge could be impartial?

The court also had problems with this, Chief Justice Roberts; Justice Scalia was the most vocal skeptic here. They felt that this appearance or probability of bias standard was too vague, would require case-by-case determination. Justice Scalia said that's no way to run a system.

Probability and probable cause

RAY SUAREZ: So they were trying to figure out when the possibility of bias crosses the line and becomes...

MARCIA COYLE: Exactly. Exactly.

RAY SUAREZ: ... probability of bias?

MARCIA COYLE: Exactly. In fact, Chief Justice Roberts said, what percentage, 50 percent or more? And Mr. Olson said, well, look, you know, probability is not -- is no looser a term than probable cause under the Fourth Amendment for police searches.

And, again, he repeated that the reasonable person test is a test the courts have used, including the Supreme Court, in other areas of the law and could work here.

He also was faced with the question, well, what -- is the political process in the states working to deal with this problem? This was Justice Souter's question, because Justice Souter explained, if the states were trying to resolve it, then the Supreme Court should stay out of it.

And he noted a brief that was filed by three states, I believe, that said, look, the states are dealing with this. We're enacting campaign contribution limits; we have recusal statutes.

Mr. Olson said the conference of chief justices of the state supreme courts has said that they need something, they need the due process standard to reach the extreme cases. And he said the political process was actually spiraling out of control and the trend is in the opposite direction.

His opponent, Andrew Frye, who represented Mr. Blankenship, though, he said that the political process is the place to deal with this, and the Supreme Court has said legislatures, judicial canons of ethics, they can deal with it.

States are interested in case

RAY SUAREZ: A lot of amicus briefs were filed from outside.

MARCIA COYLE: A lot of interest in this particular case.

RAY SUAREZ: Well, 39 states elect judges, so when the justices rule on this question, will it just narrowly have to do with West Virginia in this particular coal mine case? Or will the 39 states that elect judges have to take some notice of the ruling in this case?

MARCIA COYLE: The court could rule narrowly in terms of this particular case, but it seemed as though the court felt that there was enough of a problem here that, if it's going to say that the appearance of bias can trigger constitutional due process, it needs to come up with some kind of standard to give guidance to judges throughout the country on -- on when contributions require them to step aside.

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